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CS Professional · Intellectual Property Rights - Law and Practice · Protection of Plant Varieties

A breeder alleges that a farmer infringed his right in a variety. The farmer says he was unaware of the right. Which fact, if established, would let the farmer's defence succeed under the Act?

The defence succeeds if the farmer shows he was not aware of the existence of the right at the time of the infringement. The relevant moment is the infringing act itself, not registration or later notice. Awareness at that time defeats the protection.

  1. AHe was unaware of the right at the time the infringement took placeCorrect
  2. BHe became aware of the right only after being served the suit notice
  3. CHe was unaware of the right at the time of registration of the variety by the breeder
  4. DHe was aware of the right but believed the infringement was minor

Explanation

The test in section 42 is lack of awareness at the time of the infringement. Learning of the right later, or the date of registration, does not decide it, and awareness of the right defeats the defence regardless of how minor the act seems. Note that awareness after the act does not matter.

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